Bassam Srouji v. Direct IME and Avi Kaplun, 2012 HRTO 449

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bassam Srouji Applicant

-and-

Direct IME and Avi Kaplun Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: March 2, 2012 Citation: 2012 HRTO 449 Indexed as: Srouji v. Direct IME

1This is an Application made under s. 34 of the Ontario Human Rights Code dated July 29, 2009 alleging discrimination in the provision of services, goods and facilities because of race, ancestry, place of origin, ethnic origin and creed contrary to s. 1 of the Code, arising out of certain comments alleged to have been made by the personal respondent Mr. Kaplun during an in-home assessment of the applicant. The Application also alleges that discriminatory factors influenced the assessment made by Mr. Kaplun.

2The purpose of this Interim Decision is to address a Request for Order filed by the respondent Direct IME dated July 5, 2010 seeking an order removing Direct IME as a party to this proceeding on the basis that Mr. Kaplun was an independent contractor and was not an employee of Direct IME.

3Direct IME is a corporation that facilitates the provision of a full range of assessment services, including occupational therapy assessments. Direct IME maintains a roster of health professionals in a wide variety of specialties in order to meet the needs of its clientele.

4On November 30, 2007, Direct IME was contacted by the applicant’s insurance company in order to set up an in-home assessment for attendant care, housekeeping and home maintenance. In response, Direct IME arranged for Mr. Kaplun, an occupational therapist, to attend at the applicant’s residence on January 11, 2008 in order to conduct the assessment.

5Direct IME states that Mr. Kaplun is not one of its employees. Rather, he is an independent contractor who Direct IME retains from time to time when it has a client who requires the services of an occupational therapist to conduct an assessment. Direct IME does not exclusively contract with Mr. Kaplun, and has a number of occupational therapists who are retained from time to time as required.

6Direct IME’s policy is that all individuals performing assessment work for the company do so, on a sub-contractor basis and invoice the company directly for the work performed. This was the arrangement with Mr. Kaplun. Mr. Kaplun is not on Direct IME’s payroll, is not provided by Direct IME with tools and equipment to perform his work, and does not have an office at Direct IME or an e-mail address or telephone number that is connected with Direct IME. Further, it appears from the evidence filed with the Tribunal that Mr. Kaplun considers himself to be self-employed and conducts assessments on behalf of a number of other companies similar to Direct IME.

7Direct IME takes the position that as Mr. Kaplun is not an employee of the company, Direct IME is not in law responsible for Mr. Kaplun’s conduct. It states that there is no allegation that Direct IME directly discriminated against the applicant, and that the applicant’s entire case against Direct IME is that it is vicariously liable for the alleged conduct of Mr. Kaplun. Direct IME cites case law under the common law for the proposition that a person who engages an independent contractor is not liable for the wrongs of the contractor: see 671122 Ontario Ltd. v. Sagaz Industries Canada [2001] S.C.R. 983 at para. 33; Blondeau v. Shadowbox Production Co. [2001] O.J. No. 3469 (S.C.J.) at para. 14.

8In his Response to the Request, the applicant takes the position that how Direct IME organizes the provision of assessments is of no consequence to him as the person receiving the service. He states that Direct IME chose to provide the service to him through Mr. Kaplun, and it makes no difference whether Mr. Kaplun was an independent contractor or an employee. The applicant notes that “employment” is interpreted broadly and liberally under the Code, citing *Szabo v. Poley*, 2007 HRTO 37. The applicant notes that Direct IME states that it “retained” Mr. Kaplun to provide services to him, which means that Mr. Kaplun was assigned a task through a contract and was paid by Direct IME. The applicant asserts that this is sufficient to attract liability in the human rights context, as Mr. Kaplun’s relationship with Direct IME is covered under s. 46.3 of the Code which includes the acts of agents.

9Mr. Kaplun was afforded an opportunity to make submissions on this issue, but did not do so.

10It is clear that the Application raises no issue of a violation of the Code directly as a result of any act or omission by Direct IME. Rather, the allegations arise entirely from the actions of Mr. Kaplun.

11However, the potential liability of Direct IME for the conduct of Mr. Kaplun at issue in this proceeding arises as a result of s. 46.3 of the Code, which provides in its relevant part:

. . . any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation . . . shall be deemed to be an act or thing done by the corporation . . .

12In this regard, I note that we are dealing here with the interpretation of a statutory provision establishing deemed liability for the infringement of rights under the Human Rights Code and not with the common law principles relating to vicarious liability for tortious conduct addressed in Sagaz and Blondeau, supra. As a result, in my view, the finding in those cases that a corporation is not vicariously liable at common law for the tortious conduct of an independent contractor is not determinative of the issue in this case as to whether Direct IME is deemed to be liable under s. 46.3 of the Code for the alleged conduct of Mr. Kaplun.

13I also note that the categories of individuals whose acts or omissions may give rise to deemed liability under s. 46.3 of the Code is not restricted to employees of the corporation, but also extends to an “agent”. While the acts or omissions of an agent for which the corporation may be deemed to be liable under s. 46.3 of the Code are restricted to things done “in the course of his or her employment”, in my view it would be non-sensical to interpret the word “employment” in the context of the person’s acts or omissions only to things done by an “employee”, as such an interpretation would deprive the word “agent” of any meaning.

14I note further that this Tribunal has taken a broad and purposive approach to the interpretation of the term “employment” under the Code as extending to the relationship between a company and a sub-contractor: see Szabo, supra.

15As a result, the issues before this Tribunal for determination in relation to Direct IME’s potential deemed liability under s. 46.3 of the Code for the alleged conduct of Mr. Kaplun are twofold: (1) whether Mr. Kaplun properly can be regarded as an “agent” of Direct IME within the meaning of s. 46.3; and (2) where Mr. Kaplun’s alleged conduct was done in the course of his “employment” as that term has been broadly interpreted under the Code.

16In my view, the answer to these two questions needs to be informed by the evidence given at the hearing and made in the context of the findings of fact as determined by the adjudicator. As a consequence, in my view, it would be premature to remove Direct IME as a party respondent to this proceeding at this time.

17For all of these reasons, the request made by Direct IME is dismissed, without prejudice to its ability to lead evidence on these points at the hearing and to argue these points in its final submissions.